Secretly Recorded Conversations Admissible in Criminal Cases

The California Supreme Court says while secretly recording someone else's conversation is illegal, prosecutors can use the illicit recording as evidence in a criminal case.

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Secretly recording someone else's conversation is illegal in California, but prosecutors can use the illicit recording as evidence in a criminal case, the state Supreme Court ruled Thursday.

In their unanimous ruling, the justices cited a 1982 ballot measure passed by voters that allows all "relevant evidence" to be introduced in any criminal trial or pretrial hearing, the San Francisco Chronicle reported.

The case at hand concerned a private phone call about the actions of an alleged child molester. While the conversation was confidential under state law, its contents were clearly relevant and were properly disclosed to the jury in the molesting case, the court said.

The ruling follows a line of cases that narrowed criminal defendants' rights after the 1982 ballot measure, which sponsors dubbed the Victims' Bill of Rights, the Chronicle said. The measure included provisions that increased sentences, narrowed the insanity defense, allowed victims to testify at parole and sentencing hearings and let prosecutors introduce evidence that had been obtained in violation of state law.

Voters were clearly told that the 1982 measure "would permit 'evidence obtained through unlawful eavesdropping' to be admitted in criminal cases," Chief Justice Tani Cantil-Sakauye said, quoting the state's ballot pamphlet.

The court also rejected defense arguments that admission of secretly recorded evidence would violate the right to privacy in the California Constitution. Those who are harmed by the recordings can still sue for damages, the eavesdroppers can be prosecuted, and the evidence remains inadmissible in non-criminal cases, Cantil-Sakauye said.

The 1982 measure allowed the Legislature, by a two-thirds vote, to reinstate the ban on admission of some or all types of "relevant evidence." Since then, lawmakers have passed several measures with two-thirds majorities re-enacting the state's 1967 prohibition against secret recordings and extending it to new technologies, like cell phones. But Cantil-Sakauye said none of those measures declared an intention to make the evidence inadmissible.


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The defendant, Alejandro Guzman, was convicted of two charges of committing lewd acts on children and sentenced to five years in prison in 2015, a term he has now served, said his lawyer Verna Wefald said. One of the children, a 12-year-old girl, told her mother that while she was at a sleepover with Guzman's daughter, Guzman had put his hand in her pajamas and touched her genitals, the court said.

The girl also said her cousin had warned her about Guzman. The girl's mother then telephoned the cousin and secretly recorded the conversation, in which she said she believed the girl's account, did not feel good around Guzman, and knew he was "capable of doing that," the court said. The mother told prosecutors, who played the tape to the jury.

In upholding the conviction, the court said the case illustrates why excluding evidence from illegal recordings "may, at times, prove to be an ill-suited tool for protecting an individual's privacy," the Chronicle reported.

Barring evidence of a third-party phone call would benefit individuals like Guzman, "a person who was not recorded and whose privacy was in no way implicated," Cantil-Sakauye said.

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